¶1The opinion of the court was delivered by
¶2Whether an action for a legacy may not be supported, under the implied promise to pay, ariáng from the conside*424ration of assets, it is unnecessary to decide. In Clark v. Herring, 5 Bin. 33, it was ruled, “that assets are a sufficient consideration for a personal promise by one who is executor, to pay a legacy and charge him de bonis propriis. And in Isett v. Brenizer, it would seem to have been the opinion of the court, that an action may be maintained against an executor, personally, on a promise implied, from the consideration of indebtedness. However this may be, the legatee may elect to bring suit against him in his, representative character, and this it is believed is the usual form; in which case the judgment is de bonis testatoris, and not de bonis propriis. And in this I do-not ngree with the reasoning of the chief justice in Isett v. Brenizer. The legatees brought this suit against, Frañcis and David Sample, as executors of David Sample, deceased. The cause was referred, and the arbitrators awarded generally in favour of the plaintiff! As there was no declaration or statement filed, the judgment follows the nature of the writ, and is a judgment against them in their representative, and not their personal character. Theyi- fa. pursues the judgment,-and in short there is nothing on the record which indicates any intention of considering the executors personally liable for the debt. On the contrary, no person, who might search the docket for incumbrances, would for a moment have supposed, that the judgment bound the individual property of the executors. Wilson v. Wilson, 3 Bin. was a suit for a distributive share, in which the writ, and the recital in the declaration, was against the defendant as executor, but the count was on a promise in his individual character. And this constitutes the difference between the cases; for it was the count which controlled the writ, and rendered Wilson personally liable on the judgment. It could not have been pretended that he would have been personally bound, independently of the declaration, and that by virtue of the count, in which he is charged individually. Had the plaintiffs filed a declaration or statement, with the proper averments, as in Wilson v. Wilson, there would have been room for the argument, that his being staled to be executor, should be rejected as surplusage. As the defendants were sued as executors, judgment recovered against them as executors, and execution was issued against them in the same capacity; we are of the opinion, this judgment should bé affirmed.
¶3Judgment affirmed.